Supreme Court looks to rein in top patent court with two new cases

A few months ago, the US Supreme Court said it would take up a controversial and divided case regarding software patents. Now, the high court has agreed to take up two more patent cases—both of which could potentially overturn current rules that many in the tech sector see as too lenient for patent owners.

The first case involves a years-long battle between two competitors in the business of creating Content Delivery Networks, or CDNs: Akamai Technologies and Limelight Networks. CDNs are the Internet infrastructure that allows websites to quickly perform "load balancing" and quickly respond to high demand for their content.

The other case involves medical devices, not the Internet. That case, brought by Biosig Instruments against competitor Nautilus Inc., involves a patent that passed legal muster, even though it hinged on an undefined "spaced relationship" between two electrodes. That made it a poster-child for vague patents. Frequent patent defendants, including Google, Amazon, Newegg, JC Penney, NetApp, SAP America, and Limelight, all urged the Supreme Court to take the case.

“Divided infringement”

Akamai dominates the CDN market, controlling about 75 percent of it, according to Limelight's lawyers. In Akamai's telling, it's the beneficiary of breakthrough technology that originated with an MIT professor, who first came up with the idea of using "virtual hostnames" to direct users of a particular website to the right location within a CDN. That gave Akamai a set of features that no competitor had.

The company sued Limelight for patent infringement in 2006. There was one big problem, though—Limelight simply didn't perform all the steps in Akamai's patent. However, the judge allowed the case to go to a jury under a theory of "joint infringement," in which Limelight performed some steps of the patent, and its customers—the websites actually pushing out the content—did others.

That resulted in a $40 million infringement verdict against Limelight, but Limelight actually won the case on post-trial motions.

When the case was appealed to the US Court of Appeals for the Federal Circuit, though, a sharply divided "en banc" panel made a surprising and broad decision. In a 6-5 ruling, the top patent court found that Akamai didn't have to show that Limelight's customer actually infringed the patent directly; it merely had to show that Limelight "induced" its customer to infringe. Limelight would have to stand trial again.

That led to Limelight appealing to the Supreme Court. It also raised alarm bells among other patent defendants. The issue of "joint infringement" comes up frequently in tech and Internet cases, where a user or customer performs some steps of the patent. (The recent TQP v. Newegg trial is an example; Newegg was accused of executing some steps of the patent, while its customers performed others.)

"The Federal Circuit has created a new basis for patent-infringement liability that conflicts with this Court’s precedents and the Patent Act," wrote Limelight lawyers in their petition.

"Imposing on a business the additional obligation to speculate correctly about potential future uses by a third-party buyer or user is unreasonable and unfair," wrote lawyers representing HTC and two other high-tech companies in an amicus brief supporting Limelight.

Another brief supporting Limelight, by Google, Oracle, Red Hat, SAP, Cisco, and Xilinx, says that the already difficult cost structure of patent lawsuits is only going to get worse if the Akamai decision stands. With companies held responsible for the actions of third parties, already costly discovery could become a bottomless pit. The "expansive rule" could "impose liability on a company for supplying otherwise non-infringing products and service."

In December, the US Solicitor General weighed in, suggesting that the high court should take up the case—and saying that the Federal Circuit's interpretation was flat-out wrong.

That brief, combined with the fact that the case was taken at all, suggest it will be an uphill battle for Akamai. The fact that the Supreme Court is allowing the Federal Circuit test to be challenged suggests the justices are unhappy with it from the get-go.

Vague patents

The other patent case picked up on Friday, Nautilus Inc. v. Biosig Instruments, has some similar patent-law overtones. It's another case where a patent defendant believes the Federal Circuit created a too-easy standard, allowing a patent-holder to win. And again, prominent tech companies filed an amicus brief favoring the defendant's views.

Nautilus was sued by Biosig over a patent describing a heart rate monitor circuit design; Nautilus says the concepts at issue were described in another patent application that's 10 years older than the Biosig patent.

The Biosig inventor told the US Patent Office a patent should still be allowed, because he described something that the earlier application didn't: a design that involved a "spaced relationship" between the electrodes.

That phrase wasn't really defined in the patent, however. The district court judge who heard the case found that Biosig's attempts to define the term were all over the place. The competing definitions were internally inconsistent "gibberish," noted Nautilus lawyers. That rendered the patent indefinite and invalid in the judge's view.

On appeal, a panel of Federal Circuit judges ruled otherwise. Unless the patent was "insolubly ambiguous," it was the lower court judge's job to give definition to those unclear claims through the process of claim construction. The appeals court defined the claim and allowed the case to go forward.

That led Nautilus to appeal to the Supreme Court, arguing that the Federal Circuit had been using a too-loose test for "definiteness" for a long time. Under the current rule, "the definiteness of claim terms depends on whether those terms can be given any reasonable meaning,” noted Nautilus lawyers.

Several tech companies—including Limelight—filed an amicus brief agreeing with Nautilus that the Federal Circuit be held to tougher standards. An amicus brief written by Amazon, Google, Limelight, Newegg, and other companies agrees with Nautilus that the Supreme Court should take up the issue.

The Patent Office alone, bound by "institutional limitations" (patent examiners spend an average of 18 hours looking at each patent application), can't solve the problem of vague patents on its own, wrote the amicii. As a result, it's the courts' responsibility to require "distinct claiming" of subject matter, as mandated by the law. According to the amicii, that doesn't square with the Federal Circuit's current approach.

The Electronic Frontier Foundation and Public Knowledge, two nonprofits that are quite active in seeking to reform patent laws, also filed a brief suggesting the Supreme Court take up the Nautilus case. It asks the justices to imagine vague language like "spaced relationship" being used in a land dispute—what if a developer were trying to build a hotel near a highway, where “the western boundary is in a spaced relationship with the highway?" They write:

What can the developer do? “Spaced relationship” could mean a foot from the highway, or a yard, or a mile. The developer could guess at the meaning, but a wrong guess could render the entire investment in building the hotel a waste. Should the case be brought to court, different judges or juries could reasonably disagree on the meaning... The cards are stacked against the developer, a deadweight loss for the hotel business and for the economy at large.

A situation with regard to land would "never be tolerated," the groups note. "[B]ut for years the Federal Circuit has tolerated equally ambiguous descriptions of the metes and bounds of patents."

Further Reading

eBay dodges a permanent injunction in the fight over its popular "Buy It Now" …

There's no case on deck this year that has the weight of other cases in recent years, like eBay v. MercExchange, that fundamentally changed the patent landscape. But these two cases, combined with the Alice Corp v. CLS Bank software case and another patent case involving attorneys' fees, mean the Supreme Court is paying serious attention to patent issues in 2014.

Both of the cases granted last week will likely be argued by April and decided later in the year.

71 Reader Comments

It's probably too much to hope for, but so many ills in tech are caused by the idea of software patents that I hope your SC strikes the concept down entirely. Code should be protected by copyright, not patents. So much legal infighting are over the equivalent of square v rounded icons. This spills over to our side of the pond as well, because you have the Apples and the Samsungs and the Googles waltz in to the EU where there are no software patents as such expecting small firms and inventors to respect their patents or else.

The limitations on patent examiners when it comes to indefinite claim language (referring to Nautilus, discussed in the article) aren't really that much because of time limitations. Figuring out whether a claim is indefinite doesn't generally take very long. But we're hamstrung because the case law and Office policy aren't very supportive in terms of raising these issues during examination.

It's probably too much to hope for, but so many ills in tech are caused by the idea of software patents that I hope your SC strikes the concept down entirely. Code should be protected by copyright, not patents. So much legal infighting are over the equivalent of square v rounded icons.

I agree that there are many, many problems caused in the tech world by bad patents (software patents and design patents commonly being among the most odious offenders). But that's not really here nor there as regards your statement that "so many ills are caused by the idea of software patents". On what basis would you say that software patents are fundamentally unable to work in and of themselves? Saying that software patents are inherently broken is a tall claim, and your arguments seem to speak to the existence of bad software patents, not the inherent badness of software patents as a whole.

I'm not saying that software patents are necessarily good or bad. To be honest, I haven't put enough thought into the matter to have a meaningful opinion. But I think that one should not discount the entire concept of a software patents simply because so many are bad. If, after fixing the system to eliminate these bad patents, we find that software patents just become useless, then by all means - eliminate them. Likewise, eliminate them if there are problems inherent to all software patents which simply cannot be fixed or worked around. But I think that first we have to make efforts to fix the patent loopholes, and see if that works to eliminate the bullshit patents we see in the tech industry today.

Software patents are inherently broken because patents were created to protect inventors who spent lots of money and time developing a product. This development often involved research and costly material testing and prototyping.

Software development does not require a big initial investment, and its costs escalate along with the complexity of your product, not because of the difficulty of creating said product. Prototypes can be created and discarded before you even risk a cent. And a great deal of software is not innovative at all, just the digital implementation of a known principle, equation or solution to a problem, made faster by automation.

I'm not saying that software patents are necessarily good or bad. To be honest, I haven't put enough thought into the matter to have a meaningful opinion. But I think that one should not discount the entire concept of a software patents simply because so many are bad. If, after fixing the system to eliminate these bad patents, we find that software patents just become useless, then by all means - eliminate them. Likewise, eliminate them if there are problems inherent to all software patents which simply cannot be fixed or worked around. But I think that first we have to make efforts to fix the patent loopholes, and see if that works to eliminate the bullshit patents we see in the tech industry today.

Patenting software is like patenting a school textbook, and then claiming that anyone who reproduces the concepts within said textbook are infringing on your patent.

It's probably too much to hope for, but so many ills in tech are caused by the idea of software patents that I hope your SC strikes the concept down entirely. Code should be protected by copyright, not patents. So much legal infighting are over the equivalent of square v rounded icons.

I agree that there are many, many problems caused in the tech world by bad patents (software patents and design patents commonly being among the most odious offenders). But that's not really here nor there as regards your statement that "so many ills are caused by the idea of software patents". On what basis would you say that software patents are fundamentally unable to work in and of themselves? Saying that software patents are inherently broken is a tall claim, and your arguments seem to speak to the existence of bad software patents, not the inherent badness of software patents as a whole.

I'm not saying that software patents are necessarily good or bad. To be honest, I haven't put enough thought into the matter to have a meaningful opinion. But I think that one should not discount the entire concept of a software patents simply because so many are bad. If, after fixing the system to eliminate these bad patents, we find that software patents just become useless, then by all means - eliminate them. Likewise, eliminate them if there are problems inherent to all software patents which simply cannot be fixed or worked around. But I think that first we have to make efforts to fix the patent loopholes, and see if that works to eliminate the bullshit patents we see in the tech industry today.

Software patents are inherently broken because patents were created to protect inventors who spent lots of money and time developing a product. This development often involved research and costly material testing and prototyping.

Software development does not require a big initial investment, and its costs escalate along with the complexity of your product, not because of the difficulty of creating said product. Prototypes can be created and discarded before you even risk a cent. And a great deal of software is not innovative at all, just the digital implementation of a known principle, equation or solution to a problem, made faster by automation.

It's also important to remember that all software is, at base, just a complex math equation. And math has never been patentable.

In such a case, I would have invested real money (and undergone real risk) in the creation of this advancement of the field. By your own logic, I should be able to reap the rewards for my investment by obtaining the period of exclusivity that is granted by a patent. So by your own logic for why patents exist, the existence of some software patents is justifiable, even if not all software producing would deserve such a reward. And that being the case, I would argue again that we need to work to fix the defects that result in granting unworthy patents, rather than throwing the entire system out as worthless until we are quite sure that it has no merit whatsoever.

You don't need patents for that protection...you're protected by copyright. Nobody would be able to distribute your software (either source or binaries) without your permission. Copyright provides protection on virtual goods equivalent to what patents provide on real-world goods.

As an example, a hammer that I have lying around the house has about 6 different patents stamped right into the head to let people know that it's protected by patents. I have no idea what sort of important innovations could go into such a device, but presumably they cover specific aspects around shape, size, weight, etc. Nobody else can produce a hammer exactly like that one without running afoul of the patents on it, however the manufacturer can't get a patent on the idea of a hammer, or more in line with how many software patents are defined, "a process or method for driving nails."

That's how copyright would work on your valuable software invention. Nobody could produce and/or distribute software that is identical to what you spent time developing. However you can't claim ownership of whatever problem space the software exists in. However, that's what software patents do...they allow the patent holder to claim the entire problem space, instead of just their particular implementation of solving that problem.

If software patents required more design elements such as specific architectures, hardware involved, etc., then maybe they'd make sense. But as they stand now, they're harmful to the industry (and society) as a whole with benefits to only a small few, so it seems more prudent to just abolish them completely, rather than continue tinkering with law that's already been tinkered to death, and usually not for the better.

Let's say that I have an idea for (innovative development in software)

The rest of your argument is pretty solid, but I would love to hear what qualifies as (innovative development in software) given that most software doesn't do anything different from what we were doing before by hand.

I could also argue that if software patents benefit a few in exchange for harming most of the other people in the same field that's enough reason to abolish them. Unless you want software to be something only huge companies can do.

I am calling for some kind of argument as to why such good patents cannot exist. People seem to take that as a given, but it is by no means a given. And if good software patents can exist, then our goal should be "rectify the flaws in software patents", rather than "eliminate software patents entirely".

The fact that neither you, nor anyone else, can define a "good patent" is evidence that the very concept of a good patent doesn't exist. I think that is the point. It's just too subjective. Think about what is necessary for a good patent. Originality. Not obvious. Specific implementation. What does original mean? How far from existing products does "original" need? What is obvious? How specific does "specific" mean? None of these are well defined, as they are all just opinion. Is the glass half empty or half full? The only way to solve this in a dispute is to talk with a third party, i.e. a court. And court decisions are expected to be completely up in the air, depending upon if the judge/jury thinks the glass is half empty or half full. As you can see, in theory, this is just asking for trouble. Unfortunately, reality is usually worse than theory. If anyone can better define a "good patent," that would go a long way with solving the mess. I can't, so I say abolish all patents.

Let's say that I have an idea for (innovative development in software)

The rest of your argument is pretty solid, but I would love to hear what qualifies as (innovative development in software) given that most software doesn't do anything different from what we were doing before by hand.

I could also argue that if software patents benefit a few in exchange for harming most the other people in the same field that's enough reason to abolish them. Unless you want software to be something only huge companies can do.

Unless you are discovering some entirely new way to code, like figuring out how to upgrade binary into trinary by creating a state that is neither on or off ... all you are doing is recompiling mathematic functions.

Let's say that I have an idea for (innovative development in software)

The rest of your argument is pretty solid, but I would love to hear what qualifies as (innovative development in software) given that most software doesn't do anything different from what we were doing before by hand.

I could also argue that if software patents benefit a few in exchange for harming most the other people in the same field that's enough reason to abolish them. Unless you want software to be something only huge companies can do.

Unless you are discovering some entirely new way to code, like figuring out how to upgrade binary into trinary by creating a state that is neither on or off ... all you are doing is recompiling mathematic functions.

I am calling for some kind of argument as to why such good patents cannot exist. People seem to take that as a given, but it is by no means a given. And if good software patents can exist, then our goal should be "rectify the flaws in software patents", rather than "eliminate software patents entirely".

The fact that neither you, nor anyone else, can define a "good patent" is evidence that the very concept of a good patent doesn't exist.

That is not true at all. People's ability to properly articulate something is totally independent of the thing's existence. You see it all over the place. To give a specific example: gallons and gallons of ink have been spilled talking about love throughout human history, and it'd be extremely difficult for most people to give a good definition of it. But that doesn't mean that it doesn't exist, that just means that we're bad at talking about it (or that the language isn't up to the task).

Anyways, I disagree that we should abolish all patents because of ambiguity or subjectivity (no law is completely free from those), but I do at least respect you for being consistent and not just picking on one form of patent.

In such a case, I would have invested real money (and undergone real risk) in the creation of this advancement of the field. By your own logic, I should be able to reap the rewards for my investment by obtaining the period of exclusivity that is granted by a patent. So by your own logic for why patents exist, the existence of some software patents is justifiable, even if not all software producing would deserve such a reward. And that being the case, I would argue again that we need to work to fix the defects that result in granting unworthy patents, rather than throwing the entire system out as worthless until we are quite sure that it has no merit whatsoever.

You don't need patents for that protection...you're protected by copyright. Nobody would be able to distribute your software (either source or binaries) without your permission. Copyright provides protection on virtual goods equivalent to what patents provide on real-world goods.

As an example, a hammer that I have lying around the house has about 6 different patents stamped right into the head to let people know that it's protected by patents. I have no idea what sort of important innovations could go into such a device, but presumably they cover specific aspects around shape, size, weight, etc. Nobody else can produce a hammer exactly like that one without running afoul of the patents on it, however the manufacturer can't get a patent on the idea of a hammer, or more in line with how many software patents are defined, "a process or method for driving nails."

That's how copyright would work on your valuable software invention. Nobody could produce and/or distribute software that is identical to what you spent time developing. However you can't claim ownership of whatever problem space the software exists in. However, that's what software patents do...they allow the patent holder to claim the entire problem space, instead of just their particular implementation of solving that problem.

If software patents required more design elements such as specific architectures, hardware involved, etc., then maybe they'd make sense. But as they stand now, they're harmful to the industry (and society) as a whole with benefits to only a small few, so it seems more prudent to just abolish them completely, rather than continue tinkering with law that's already been tinkered to death, and usually not for the better.

I think that you're right that copyright is a good protection, but for some things it may be unsuited. For example, assume for sake of argument that some algorithm (pick your favorite one) is sufficiently novel (and represents a large enough exertion of effort) to deserve protection so that its creator can profit. Copyright doesn't seem to be a great fit though, because it would only cover that specific implementation of the algorithm, not the algorithm itself (and remember, we agree for sake of argument that this algorithm really is novel enough to be protected). That seems to me to be the sort of situation where a patent would be best suited, rather than copyright.

Now, I think your last paragraph is totally fair. Software patents, as they stand now, they are not a good thing for the industry (in addition to the flaws you named, they last far too long in an industry which changes at such a rapid pace). It's just that in general, I believe in trying to salvage the parts of worth, rather than scrapping the entire thing. I do respect the pragmatism of your reasoning, though.

That is not true at all. People's ability to properly articulate something is totally independent of the thing's existence. You see it all over the place. To give a specific example: gallons and gallons of ink have been spilled talking about love throughout human history, and it'd be extremely difficult for most people to give a good definition of it. But that doesn't mean that it doesn't exist, that just means that we're bad at talking about it (or that the language isn't up to the task).

Existing or not, no one would argue that love should be patentable in any form. So your analogy is no argument in favor of software patents.

Let's say that I have an idea for (innovative development in software)

The rest of your argument is pretty solid, but I would love to hear what qualifies as (innovative development in software) given that most software doesn't do anything different from what we were doing before by hand.

I could also argue that if software patents benefit a few in exchange for harming most the other people in the same field that's enough reason to abolish them. Unless you want software to be something only huge companies can do.

Well, I was deliberately vague just because I don't have ideas offhand and I didn't want this to be about the merits of a specific example. I think that we can all agree that there are innovative ideas that have happened in software (for example, relational databases). Are there still ideas which are sufficiently innovative as to deserve patent protection? *shrug*. It's a matter of opinion, I guess. But if I had the capacity to think of a concrete example of something new and innovative, I can assure you that I wouldn't be wasting time on the internet right now.

I also see where you're coming from in your second paragraph. I think that's definitely a valid perspective and a good argument. I guess it depends on how you define the goals of legal constructs like patents. If you are approaching it with some kind of argument that is about "these creators have rights we have to respect", then it really wouldn't matter if only a few benefit. Conversely, like you alluded to we can view patents as a way to further the benefit of the industry (and society by extension), in which case the abolition of software patents is pretty easy to argue for. I tend to be somewhere in between, so I have a harder time deciding what I think the right answer is (on the one hand, I think creators do have rights, on the other hand, we can't just screw over the rest of the industry to protect them).

Thanks for the post though, it definitely gives me some food for thought.

That is not true at all. People's ability to properly articulate something is totally independent of the thing's existence. You see it all over the place. To give a specific example: gallons and gallons of ink have been spilled talking about love throughout human history, and it'd be extremely difficult for most people to give a good definition of it. But that doesn't mean that it doesn't exist, that just means that we're bad at talking about it (or that the language isn't up to the task).

Existing or not, no one would argue that love should be patentable in any form. So your analogy is no argument in favor of software patents.

O.o

You took me way, way out of context. My analogy was in no way intended to be an argument in favor of software patents, or patents of any kind. I was simply using it to demonstrate how the idea of "people can't describe this, so it doesn't exist" is untrue.

That is not true at all. People's ability to properly articulate something is totally independent of the thing's existence. You see it all over the place. To give a specific example: gallons and gallons of ink have been spilled talking about love throughout human history, and it'd be extremely difficult for most people to give a good definition of it. But that doesn't mean that it doesn't exist, that just means that we're bad at talking about it (or that the language isn't up to the task).

Existing or not, no one would argue that love should be patentable in any form. So your analogy is no argument in favor of software patents.

O.o

You took me way, way out of context. My analogy was in no way intended to be an argument in favor of software patents, or patents of any kind. I was simply using it to demonstrate how the idea of "people can't describe this, so it doesn't exist" is untrue.

But none of those descriptions can be considered definitive, or even precise, or such that anyone can use aforesaid description to distinguish between "implementations", establish prior art, or...

In such a case, I would have invested real money (and undergone real risk) in the creation of this advancement of the field. By your own logic, I should be able to reap the rewards for my investment by obtaining the period of exclusivity that is granted by a patent. So by your own logic for why patents exist, the existence of some software patents is justifiable, even if not all software producing would deserve such a reward. And that being the case, I would argue again that we need to work to fix the defects that result in granting unworthy patents, rather than throwing the entire system out as worthless until we are quite sure that it has no merit whatsoever.

You don't need patents for that protection...you're protected by copyright. Nobody would be able to distribute your software (either source or binaries) without your permission. Copyright provides protection on virtual goods equivalent to what patents provide on real-world goods.

As an example, a hammer that I have lying around the house has about 6 different patents stamped right into the head to let people know that it's protected by patents. I have no idea what sort of important innovations could go into such a device, but presumably they cover specific aspects around shape, size, weight, etc. Nobody else can produce a hammer exactly like that one without running afoul of the patents on it, however the manufacturer can't get a patent on the idea of a hammer, or more in line with how many software patents are defined, "a process or method for driving nails."

That's how copyright would work on your valuable software invention. Nobody could produce and/or distribute software that is identical to what you spent time developing. However you can't claim ownership of whatever problem space the software exists in. However, that's what software patents do...they allow the patent holder to claim the entire problem space, instead of just their particular implementation of solving that problem.

If software patents required more design elements such as specific architectures, hardware involved, etc., then maybe they'd make sense. But as they stand now, they're harmful to the industry (and society) as a whole with benefits to only a small few, so it seems more prudent to just abolish them completely, rather than continue tinkering with law that's already been tinkered to death, and usually not for the better.

I think that you're right that copyright is a good protection, but for some things it may be unsuited. For example, assume for sake of argument that some algorithm (pick your favorite one) is sufficiently novel (and represents a large enough exertion of effort) to deserve protection so that its creator can profit. Copyright doesn't seem to be a great fit though, because it would only cover that specific implementation of the algorithm, not the algorithm itself (and remember, we agree for sake of argument that this algorithm really is novel enough to be protected). That seems to me to be the sort of situation where a patent would be best suited, rather than copyright.

Now, I think your last paragraph is totally fair. Software patents, as they stand now, they are not a good thing for the industry (in addition to the flaws you named, they last far too long in an industry which changes at such a rapid pace). It's just that in general, I believe in trying to salvage the parts of worth, rather than scrapping the entire thing. I do respect the pragmatism of your reasoning, though.

But the algorithm itself is pure math and legally unpatentable. The specific implementation of it, the software you've written, is inherently covered by copyright through the act of writing it, regardless of whether its novel or not. There should be no reason why someone else is not allowed come up with a different way of writing software that achieves the same calculation provided that they didn't look at what you did and then essentially copy it with different names. I don't see a need to let patents be used to protect how software looks or acts since that is already covered under things like trademark and copyright laws.

I'm not saying that software patents are necessarily good or bad. To be honest, I haven't put enough thought into the matter to have a meaningful opinion. But I think that one should not discount the entire concept of a software patents simply because so many are bad. If, after fixing the system to eliminate these bad patents, we find that software patents just become useless, then by all means - eliminate them. Likewise, eliminate them if there are problems inherent to all software patents which simply cannot be fixed or worked around. But I think that first we have to make efforts to fix the patent loopholes, and see if that works to eliminate the bullshit patents we see in the tech industry today.

Patenting software is like patenting a school textbook, and then claiming that anyone who reproduces the concepts within said textbook are infringing on your patent.

Not necessarily. There are indeed many software patents we see floated around in the industry which amount to what you said. But it doesn't follow from that, that all software patents are inherently that way. A good software patent would, in theory, be more like discovering an entirely new branch of some field of study, and then getting the exclusive rights to make textbooks about this new area.

Do you actually know what software *is*?

The software in this analogy is not "the stuff the textbook is about", but the textbook itself. If you discover an entirely new branch of some field or study then hey, perhaps you can patent that, but then it is no longer a software patent. Can you patent the mere act of "writing a textbook about <topic>", independently of any patents on <topic> itself?

Software is just a textual description of how to do X on a computer. A textbook intended for the computer to read.

On what basis would you say that software patents are fundamentally unable to work in and of themselves? Saying that software patents are inherently broken is a tall claim, and your arguments seem to speak to the existence of bad software patents, not the inherent badness of software patents as a whole.

I'm not saying that software patents are necessarily good or bad. To be honest, I haven't put enough thought into the matter to have a meaningful opinion.

You may not have put much thought into it, but other people have. I've spent years thinking about it and I'm of the opinion that patents are a bad idea. Not just software patents, all patents.

It was a bad idea in the beginning and the modern implementation is even worse. The fact anyone who dreams up an idea first has exclusive rights to it is just bad. People are continuously dreaming up the same idea at the same time, why should the one who spends $30,000 on legal fees be the only one who can implement that idea?

Thomas Jefferson, who created the US patent office, said patents are a necessary evil, he was afraid they would create dangerous monopolies but felt it necessary to ensure inventions are written down on paper and kept in a library for future generations.

Today, in the digital age, we no-longer need any of that. There are corporations who file several new patents *every single day* to shore up their monopolies, meanwhile people like me, an engineer, who theoretically can draw from the great library of expired patents never actually does so. Nobody ever looks up anything that's ever been patented, except lawyers. Because patents are written in an extremely obtuse language that nobody can ever understand. It takes weeks of study to even figure out what a typical patent covers, and then you'll figure out it doesn't cover anything useful at all, and move on to the next one. After a lifetime of such searching, you probably won't discover anything useful. If you do find something useful, chances are the most important details are missing, since a patent cannot possibly cover everything and lawyers always carefully keep trade secrets out of patent applications.

So basically, we're left with a situation where patents are completely incapable of providing what they were originally intended to provide, but we do still suffer from the "evil" part, which is that they create monopolies.

Computing companies use it to prevent fair competition, drug companies use it to prevent competitors from offering the same drug at reduced prices.

I'm not entirely familiar with the medical industry, but I've heard some people say medical patents are a thousand times worse than software patents. In India, there are new laws recently put in place to prevent patents from being applied properly to anything related to medicine. We need that in the rest of the world.

Multi-hundred-billion dollar corporations should compete with each other by making the best software, by making the most effective medicine. They should not be allowed to lock their competitors out with multi-billion dollar lawsuits or crippling licensing fees.

My only close involvement with patents was when a company using software I helped develop was contacted by a patent troll, our legal team said their patent was probably invalid but it's too expensive to try and defend yourself. That company signed a contract handing 10% of it's gross revenue to the patent troll. That is how patents work in the real world.

Maybe they were a necessary evil once, but today they are just plain evil.

Perhaps there is some way to "fix" patent law, but I personally do not know how to do it and I have never seen anybody who knows more than I do about patents say they know how to do it. The best anyone ever has to offer is "if we did this, it would be slightly less horrible". My opinion is patent law should be completely thrown out unless somebody can figure out a way to fix it, and fix it fast.

It's probably too much to hope for, but so many ills in tech are caused by the idea of software patents that I hope your SC strikes the concept down entirely. Code should be protected by copyright, not patents. So much legal infighting are over the equivalent of square v rounded icons.

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I'm not saying that software patents are necessarily good or bad. To be honest, I haven't put enough thought into the matter to have a meaningful opinion.

Let's not forget the problem that allows horrible patents to get through.

No, not limited time for patent examiners to review patents.No, not incompetence of all patent examiners.

To put it in video game terms, patent applicants have "infinite lives" to try and get the worst possible patent through the system. At no point in time can a patent be effectively denied flat-out, because there is always the opportunity to try again with slightly different wording while keeping your original priority date. Why bother trying to write a patent that is reasonable, relates to your invention, and defines it in reasonable scope? Just keep throwing **** at the patent office as long as you can afford the filing fees and eventually something will stick.

This is not helped, of course, by it adding to the workload of patent examiners who are already constrained by budget and time in how long they can actually look at a patent application. At some point, there needs to be a "stop, no, you have been denied, GOOD DAY SIR." I'm just not sure where exactly that could go to truly assist worthwhile patents while giving a hard deadline for people trying to sneak through horrible patents.

This is not helped, of course, by it adding to the workload of patent examiners who are already constrained by budget and time in how long they can actually look at a patent application. At some point, there needs to be a "stop, no, you have been denied, GOOD DAY SIR." I'm just not sure where exactly that could go to truly assist worthwhile patents while giving a hard deadline for people trying to sneak through horrible patents.

I think budget constraints issues are ridiculous. It demonstrates pure incompetence on the government's part.

Why can't the patent examiners simply charge a reasonable rate, say, $1,000 per hour, for all the time they spend examining the patent? Corporations pay their legal teams a lot more than that to write the patent.

Since patents already cost tens of thousands of dollars to file and hundreds of thousands of dollars to defend in court when someone "violates" your patent, why isn't there a high enough patent filing fee to cover examination costs?

I think that you're right that copyright is a good protection, but for some things it may be unsuited. For example, assume for sake of argument that some algorithm (pick your favorite one) is sufficiently novel (and represents a large enough exertion of effort) to deserve protection so that its creator can profit. Copyright doesn't seem to be a great fit though, because it would only cover that specific implementation of the algorithm, not the algorithm itself (and remember, we agree for sake of argument that this algorithm really is novel enough to be protected). That seems to me to be the sort of situation where a patent would be best suited, rather than copyright.

Now, I think your last paragraph is totally fair. Software patents, as they stand now, they are not a good thing for the industry (in addition to the flaws you named, they last far too long in an industry which changes at such a rapid pace). It's just that in general, I believe in trying to salvage the parts of worth, rather than scrapping the entire thing. I do respect the pragmatism of your reasoning, though.

Well, trade secret can protect your algorithm (and really, algorithms are mathematics).Or, more usefully, being first to market in a fast changing environment protects your market share in the use of the algorithm.That's the key point. There is no need for additional innovation incentives in software (ask Microsoft if they patented a lot at the beginning), so you only get the downside of patents, which is everything that comes with any form of monopoly (mostly, economic loss). There are studies that discuss the economic benefits and costs of software patents documenting this effect.

Similarly, if you need ten years to develop a medical product that someone can copy in 6 month, you need some guaranties to protect your research investment.If you need ten years to develop an algorithm, you're dead (as a business plan), it does not matter what protections you get.If you need six months to develop an algorithm that someone can copy in 6 month, you're fine (because in 6 month you'll have another), and it does not matter what protections you get.And distributing 20Y monopolies on something that took 6 months to create is not very efficient for an economy.

Let's say that I have an idea for (innovative development in software)

The rest of your argument is pretty solid, but I would love to hear what qualifies as (innovative development in software) given that most software doesn't do anything different from what we were doing before by hand.

I could also argue that if software patents benefit a few in exchange for harming most the other people in the same field that's enough reason to abolish them. Unless you want software to be something only huge companies can do.

Unless you are discovering some entirely new way to code, like figuring out how to upgrade binary into trinary by creating a state that is neither on or off ... all you are doing is recompiling mathematic functions.

Okay so question from a non-legal person. Say the Supreme court overrules one of these decisions. Does that mean that every case that was decided based off the decision would be able to be appealed on the ground that the ruling was wrong? or is the Supreme court trying to deal with this now before other cases have been decided using the ruling?

That is not true at all. People's ability to properly articulate something is totally independent of the thing's existence. You see it all over the place. To give a specific example: gallons and gallons of ink have been spilled talking about love throughout human history, and it'd be extremely difficult for most people to give a good definition of it. But that doesn't mean that it doesn't exist, that just means that we're bad at talking about it (or that the language isn't up to the task).

Anyways, I disagree that we should abolish all patents because of ambiguity or subjectivity (no law is completely free from those), but I do at least respect you for being consistent and not just picking on one form of patent.

That's not the point, but that IS why I don't think there should be laws on love. I didn't say there could not be a concept of a patent, just that one could not be defined because it is too subjective. The property analogy in the article was sound in my mind. Property dimensions are not debatable. They are pretty objective, so you don't need to go to court on every issue. If you do, there is a huge amount of objectivity. With patents, there is not a trace of objectivity . . . at least that I can find. For laws, you need to actually define the thing that is being forbidden or protected. In philosophy, love, beauty, unicorns may exist, but keep the laws out of it unless you can define them better. Because if you cannot define it, you cannot even reach common ground in a discussion, and it all becomes opinion. In love, that's fine. In law, that's just a mess.

This is not helped, of course, by it adding to the workload of patent examiners who are already constrained by budget and time in how long they can actually look at a patent application. At some point, there needs to be a "stop, no, you have been denied, GOOD DAY SIR." I'm just not sure where exactly that could go to truly assist worthwhile patents while giving a hard deadline for people trying to sneak through horrible patents.

I think budget constraints issues are ridiculous. It demonstrates pure incompetence on the government's part.

Why can't the patent examiners simply charge a reasonable rate, say, $1,000 per hour, for all the time they spend examining the patent? Corporations pay their legal teams a lot more than that to write the patent.

Since patents already cost tens of thousands of dollars to file and hundreds of thousands of dollars to defend in court when someone "violates" your patent, why isn't there a high enough patent filing fee to cover examination costs?

The real question is how does some college school student with $20 in his pocket afford a patent when it costs $1000/hour? A good idea can come from anywhere.

There is probably no easy way to "fix" patents and they will likely always cause more problems than they're worth.

The other issue is these "examiners" seem to be incompetent. You can't tell if a patent is obvious by just being a programmer, you must be experienced in the problem domain. An example of this is IBM or GE, can't remember which, has a patent on some sort of 3D manipulation. It was new, it was novel, but only because the problem domain was new and novel. A professor in a CS class was not allowed to teach the patent, so he did the next best thing, he gives his students the problem domain and asks them to solve it. Nearly every student creates a solution to that problem, it only takes them a day or so to figure it out, and they all run afoul of the patent.

Nearly every software patent out there is obvious to anyone in the profession, but was not so to the patent examiners.

I knew the Federal Circuit is a little wonky in their reasoning to say the least, however their decisions on both of the cases being appealed is downright nutty. Why the hell should a judge fill in the gaps and do the claim construction for the patent holder, if they can't be bothered to do so when prosecuting the patent then tough nuts. I know the USPTO is overworked but they really need to slow down and take their time when looking at applicants. They really need more people looking at the patents and more time needs to be dedicated to them. There are plenty of unemployed lawyers if they so chose to increase the ranks of patent examiners, and if cost is an issue just raise the application fees.

The thing that would help the most, yet is unlikely to happen, is for SCOTUS to just state that software is not patentable. They get enough protection already through copyright law.

Software development does not require a big initial investment, and its costs escalate along with the complexity of your product, not because of the difficulty of creating said product. Prototypes can be created and discarded before you even risk a cent. And a great deal of software is not innovative at all, just the digital implementation of a known principle, equation or solution to a problem, made faster by automation.

That's not necessarily true, however (that you can do a great deal of prototyping before risking a cent). Sure, you can do that - building things in your spare time, for example, costs you nothing (except opportunity cost, but that isn't something that should factor into this imo). But that does not mean that all software is necessarily made that way. Let's say that I have an idea for (innovative development in software), and spend some amount of time working full time on developing it to the stage where I can create a product around it (either living off savings or borrowed money to do so).

In such a case, I would have invested real money (and undergone real risk) in the creation of this advancement of the field. By your own logic, I should be able to reap the rewards for my investment by obtaining the period of exclusivity that is granted by a patent. So by your own logic for why patents exist, the existence of some software patents is justifiable, even if not all software producing would deserve such a reward. And that being the case, I would argue again that we need to work to fix the defects that result in granting unworthy patents, rather than throwing the entire system out as worthless until we are quite sure that it has no merit whatsoever.

Dammit, thought-out, cogent arguments have no place here! Grab your pitchfork and torch and jump on the patents-are-evil bandwagon!

On what basis would you say that software patents are fundamentally unable to work in and of themselves? Saying that software patents are inherently broken is a tall claim, and your arguments seem to speak to the existence of bad software patents, not the inherent badness of software patents as a whole.

I'm not saying that software patents are necessarily good or bad. To be honest, I haven't put enough thought into the matter to have a meaningful opinion.

[...]

Today, in the digital age, we no-longer need any of that. There are corporations who file several new patents *every single day* to shore up their monopolies, meanwhile people like me, an engineer, who theoretically can draw from the great library of expired patents never actually does so. Nobody ever looks up anything that's ever been patented, except lawyers. Because patents are written in an extremely obtuse language that nobody can ever understand. It takes weeks of study to even figure out what a typical patent covers, and then you'll figure out it doesn't cover anything useful at all, and move on to the next one. After a lifetime of such searching, you probably won't discover anything useful. If you do find something useful, chances are the most important details are missing, since a patent cannot possibly cover everything and lawyers always carefully keep trade secrets out of patent applications.

[...]

That's also not even including the fact that if you look up patents and somehow end up being on the defending side of a lawsuit, it can be held against you as evidence that you willfully infringed, and thus are open to harsher penalties. Instead of, you know. An attempt at due diligence.

I think that you're right that copyright is a good protection, but for some things it may be unsuited. For example, assume for sake of argument that some algorithm (pick your favorite one) is sufficiently novel (and represents a large enough exertion of effort) to deserve protection so that its creator can profit. Copyright doesn't seem to be a great fit though, because it would only cover that specific implementation of the algorithm, not the algorithm itself (and remember, we agree for sake of argument that this algorithm really is novel enough to be protected). That seems to me to be the sort of situation where a patent would be best

And why should abstract algorithms receive patent protection regardless of how innovative there are? Math is not patentable. In any case, it would seem absurd if someone were to disassemble your code and take you to court saying "Thou shalt not sort your lists in this manner!."

I think that you're right that copyright is a good protection, but for some things it may be unsuited. For example, assume for sake of argument that some algorithm (pick your favorite one) is sufficiently novel (and represents a large enough exertion of effort) to deserve protection so that its creator can profit. Copyright doesn't seem to be a great fit though, because it would only cover that specific implementation of the algorithm, not the algorithm itself (and remember, we agree for sake of argument that this algorithm really is novel enough to be protected). That seems to me to be the sort of situation where a patent would be best

And why should abstract algorithms receive patent protection regardless of how innovative there are? Math is not patentable. In any case, it would seem absurd if someone were to disassemble your code and take you to court saying "You shalt not sort your lists in this manner!."

Then you cases like the Newegg suit where it the patent holder successfully argued that having a patent on a router with a hard coded symmetrical encryption key is exactly the same thing as using a general purpose router to send asymmetrically encrypted data, effectively giving the patent holder ownership over all encryption. Or to use your metaphor, "Thou shalt not sort lists at all!"

Software development does not require a big initial investment, and its costs escalate along with the complexity of your product, not because of the difficulty of creating said product. Prototypes can be created and discarded before you even risk a cent. And a great deal of software is not innovative at all, just the digital implementation of a known principle, equation or solution to a problem, made faster by automation.

That's not necessarily true, however (that you can do a great deal of prototyping before risking a cent). Sure, you can do that - building things in your spare time, for example, costs you nothing (except opportunity cost, but that isn't something that should factor into this imo). But that does not mean that all software is necessarily made that way. Let's say that I have an idea for (innovative development in software), and spend some amount of time working full time on developing it to the stage where I can create a product around it (either living off savings or borrowed money to do so).

In such a case, I would have invested real money (and undergone real risk) in the creation of this advancement of the field. By your own logic, I should be able to reap the rewards for my investment by obtaining the period of exclusivity that is granted by a patent. So by your own logic for why patents exist, the existence of some software patents is justifiable, even if not all software producing would deserve such a reward. And that being the case, I would argue again that we need to work to fix the defects that result in granting unworthy patents, rather than throwing the entire system out as worthless until we are quite sure that it has no merit whatsoever.

I think what you are missing is the fact that a patent does not protect you just because you invested a ton of money into whatever you invented.

First, and most annoying to me, anything that is patentable CAN NOT BE OBVIOUS to a person skilled in the art. Most software patents are completely obvious to a person skilled in the art. The problem is that most people don't sit around thinking about future hardware developments; they work with what they have on hand. Then, when <hardware advancement> comes out, everybody starts thinking about how it can be used and the first person to the patent office gets to sue everybody else for very simple software. Do you honestly believe that clicking a button once to purchase is patentable? Ever use a Coke machine? Do you honestly believe that making an in app purchase in real money is patentable? Hell, a patent was granted for faxing a check to a bank. And this is just the tip of the iceburg.

Now, we cannot for sure say the system is "completely worthless" because that would take an infinite amount of time and an infinite amount of patents. However, we can easily and without doubt say the system is much more harmful than it is good. Some company can hire a guy to sit around and dream up stuff that MIGHT happen in the future but produce nothing. Then, when the company gets lucky enough for that idea to actually become feasable they wait until the product proliferates and then sue the hell out of everybody. I'm sorry, but real inventors don't dream of things they might accidently be able to do if some weird technology just happens to come out years and years in the future. They find a problem today and solve it.